Tag: Assimilation

A Win for the ICWA

It came as a huge surprise yesterday when the Supreme Court ruled in favor of the Indian Child Welfare Act. I was not surprised that Justices Clarence Thomas and Samuel Alito dissented. They have become thorns causing the perception that the Supreme Court has a few problems. I was surprised that Justice Amy Coney Barrett wrote the opinion as she has adopted two children from Haiti. Maybe that was intended to soothe adoptive parents who could be upset at the court’s ruling.

I have written about this case several times since it first appeared on my own radar. Just search on ICWA and you will find blogs posted on November 10, 2019, twice in 2021 on August 24, 2021 and September 24, 2021 as well as twice in November 2022 on the 7th and 15th and again this 2023 year on March 10th.

The leaders of tribes involved in the case issued a joint statement calling the outcome a major victory for tribes and Native children. “We hope this decision will lay to rest the political attacks aimed at diminishing tribal sovereignty and creating instability throughout Indian law that have persisted for too long.”

Congress had passed the law in response to the alarming rate at which Native American and Alaska Native children were taken from their homes by public and private agencies. The law requires states to notify tribes and seek placement with the child’s extended family, members of the child’s tribe or other Native American families.

Three white families, the state of Texas and a small number of other states claimed the law is based on race and is unconstitutional under the equal protection clause. They also contended it puts the interests of tribes ahead of children and improperly allows the federal government too much power over adoptions and foster placements, areas that typically are under state control.

The lead plaintiffs in the Supreme Court case — Chad and Jennifer Brackeen of Fort Worth, Texas — adopted a Native American child after a prolonged legal fight with the Navajo Nation, one of the two largest Native American tribes, based in the Southwest. The Brackeens are trying to adopt the boy’s 5-year-old half-sister, known in court papers as Y.R.J., who has lived with them since infancy. The Navajo Nation has opposed that adoption.

It is important to note that Justice Brett Kavanaugh, who was in the majority on Thursday, wrote – “In my view, the equal protection issue is serious.” Kavanaugh also commented that the race of prospective parents and children could be used to reject a foster placement or adoption, “even if the placement is otherwise determined to be in the child’s best interests.” The Supreme Court dealt with that issue by determining that neither Texas nor the parents had legal standing to make that argument in this case. The Brackeens and others can make those arguments in state court proceedings and so the case is not over.

Matthew McGill, who represented the Brackeens at the Supreme Court, said he would press a racial discrimination claim in state court. “Our main concern is what today’s decision means for the little girl, Y.R.J . — now five years old — who has been a part of the Brackeen family for nearly her whole life. The Court did not address our core claim that ICWA impermissibly discriminates against Native American children and families that wish to adopt them, saying it must be brought in state court.”

All the children who have been involved in the current case at one point are enrolled or could be enrolled as Navajo, Cherokee, White Earth Band of Ojibwe and Ysleta del Sur Pueblo. Some of the adoptions have been finalized while some are still being challenged. More than three-quarters of the 574 federally recognized tribes in the country and nearly two dozen state attorneys general across the political spectrum had called on the high court to uphold the law.

Before the Indian Child Welfare Act was enacted, between 25% and 35% of Native American children were being taken from their homes and placed with adoptive families, in foster care or in institutions. Most were placed with white families or in boarding schools in attempts to assimilate them.

~ most of the details in today’s blog came by way of LINK>The PBS News Hour.

Related Issues

Two articles came to my attention yesterday that I believe are related. One was titled The Baby Bust: Why Are There No Infants to Adopt? The subtitle was – Declining birth rates and other factors make it difficult for hopeful adoptive parents to create their forever families. In my all things adoption group, it has become obvious to me that many prospective adoptive parents have become more than a bit desperate.

I actually do believe that the Pro-Life movement is driven by the sharp decline in women either not carrying a pregnancy or choosing to be single parents. Our society’s norms have changed since the 1930s when my parents were adopted.

The other article was Why is the US right suddenly interested in Native American adoption law? In this situation, laws meant to protect Native Americans who have been exploited and cheated out of so much, including their own children, is being challenged by white couples wanting to adopt as being a kind of reverse discrimination against them.

So back to the first article –

The number of adoptions in general has been steadily declining over the years. U.S. adoptions reached their peak in 1970 with 175,000 adoptions tallied. That number had fallen to 133,737 by 2007. Seven years later, the total sank further to 110,373, a 17% decrease.

Reports of a 50% or more decrease in available birth mothers are coming from adoption agencies all over. As a result, some agencies have folded. Those still in operation are compiling long waiting lists of hopeful adoptive parents.

Even so, the demand for infants to adopt remains high. The good news is also that fewer teenagers are becoming pregnant. Teen birth rates peaked at 96.3 per 1,000 in 1957 during the post-war baby boom. However, with the widespread acceptance and use of birth control, there has been a dramatic decline in the teenage pregnancy rate.  This rapid decline in teenage birth rates was seen across all major racial and ethnic groups. 

Estimates indicate that approximately half of the pregnancies in the United States were not planned. Of those unintended pregnancies, about 43% end in abortion; less than 1% of such pregnancies end in adoption. Adoption is a rare choice. The pandemic shut-down also reduced places where meetings could occur that tend to lead to casual encounters, which often result in unplanned pregnancies.

On to that second article –

A 1978 law known as the Indian Child Welfare Act or ICWA tried to remedy adoption practices that were created to forcibly assimilate Native children. Last April, an appeals court upheld parts of a federal district court decision, in a case called Brackeen v Haaland, that found parts of ICWA “unconstitutional”. The non-Indian plaintiffs (mostly white families wanting to foster and adopt Native children) contend that federal protections to keep Native children with Native families constitute illegal racial discrimination, and that ICWA’s federal standards “commandeer” state courts and agencies to act on behalf of a federal agenda.

The thinking that non-Indians adopting Native children is as old as the “civilizing” mission of colonialism – saving brown children from brown parents. In fact, among prospective adoptive parents there is a dominant belief that they are actually saving children. Native families, particularly poor ones, are always the real victims. A high number, 25-35%, of all Native children have been separated from their families. They are placed in foster homes or adoptive homes or institutions. Ninety percent are placed in non-Indian homes. Native children are four times more likely to be removed from their families than white children are from theirs. Native family separation has surpassed rates prior to ICWA according to a 2020 study.

The fact is that there is a dark side to foster care. Some state statutes may provide up to several thousands of dollars a child per month to foster parents, depending on the number of children in their care and a child’s special needs. Why doesn’t that money go towards keeping families together by providing homes instead of tearing them apart?